Criminal legal aid fee changes pose “significant risks”

The Law Society has warned the House of Commons Justice Select Committee about the damages that proposed changes to fees for criminal legal aid may cause. The Society has told MPs that the Ministry of Justice’s proposed fee cuts pose “significant risks” to the stability of the criminal justice system.
The warning comes in a draft iteration of the Society’s response to the Transforming Legal Aid: Next Steps consultation paper, which the Society has shared with the Justice Select Committee.
While noting that the Society and the Ministry are “in agreement over the proposed structure for procuring criminal legal aid in the future” the document makes clear that the Society “opposes planned fee cuts and reiterates warnings about the damage these may cause.”
Law Society President Nicholas Fluck said:
“Following discussion between the MoJ and the Law Society over the summer, the Ministry put forward a fresh proposal for the tendering of criminal legal aid contracts on 5 September. That revised model will see client choice retained, all firms able to undertake unlimited own-client work and duty solicitor contracts allocated according to capacity and capability, not price and represents the best possible tendering structure for criminal legal aid.
“However, the fee changes proposed in the consultation are a cause for serious concern. Given the fragility of the legal aid market, starkly set out in evidence gathered by Otterburn Consulting for the Society as part of our response to the first consultation, a cut of 17.5% poses a significant risk to the future sustainability of the sector.
“Before taking the risk of proceeding with fee cuts, the Ministry must be very sure that the solicitors and their firms are on a robust enough financial footing to withstand this .”
Explaining the Society’s concerns about the proposed restructuring of fees, Nicholas Fluck added:
“We also set out in our draft response our concerns about the imposition of single national fixed fees and our deep unease at proposals to pay litigators the same fee whether or not a case goes to trial.
“The impact of a single national fixed fee will be vary considerably across different areas. This disparity – ranging from a small increase to a 47% cut – introduces new concerns about the viability of the cuts proposed, which will be even more acute in some areas than previous anticipated.
“Flat fees in the magistrates’ court and the Crown Court – the same payment no matter whether the defendant pleads guilty, the trial cracks or there is a full trial – make us deeply uneasy. While solicitors will, of course, follow their professional obligation to ensure that a defendant is properly represented there is a serious risk that clients may ignore sensible advice is they perceive that it is being driven by financial considerations.”